Citation Nr: 0500983
Decision Date: 01/13/05 Archive Date: 01/19/05
DOCKET NO. 03-06 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to an increased rating for a left knee
disability, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Pitts, Counsel
INTRODUCTION
The veteran served on active duty from September 1979 to
September 1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) at
Milwaukee, Wisconsin.
FINDINGS OF FACT
The veteran's left knee disability is manifested by
arthritis, painful motion, and limitation of flexion to 30
degrees.
CONCLUSION OF LAW
The criteria for a rating of 20 percent for arthritis of the
left have been met.
38 U.S.C.A. §§ 1155, 5100, 5102-5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.40,
4.45, 4.59, 4.71a, Diagnostic Code 5003, 5260 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
i. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (codified, as
amended, at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126
(West 2002) (the VCAA)) applies to all claims for VA benefits
filed on or after its November 9, 2000 date of enactment or
filed before its date of enactment but not final as of that
date. 38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions).
Regulations implementing the VCAA have been promulgated and,
except for certain provisions concerning the reopening of
claims with new and material evidence, are effective from the
date of the statute's enactment. See 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2004); 66 Fed. Reg. 45,620-32
(Aug. 29, 2001).
The VCAA applies to the adjudication of the issue presented
on appeal because it was signed into law prior to the
promulgation of the rating decision on appeal. 38 U.S.C.A. §
5107 note (Effective and Applicability Provisions).
Under the VCAA, VA has certain duties to claimants of VA
benefits that must be fulfilled before their claims may be
denied. When a claim is before it on appeal, the Board
considers whether any action required by the VCAA remains to
be performed and will remand the claim for the completion of
any such needed action. See Charles v. Principi, 16 Vet.
App. 370, 373-74 (2002). The Board has concluded for the
reasons that follow that VA has satisfied the VCAA with the
actions it has taken on the issue on appeal and that all
evidence needed for an equitable disposition of this issue
has been secured.
Notice
Under the VCAA, VA has a duty to give claimants of VA
benefits certain notice concerning the evidence that is
needed to substantiate their claims. With respect to the
claim on appeal, VA has fulfilled all requirements of the
VCAA concerning this notice.
The notice furnished by VA must inform the claimant, and the
claimant's representative, if any, of any information and of
any medical and lay evidence that VA determines is necessary
to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87
(2002). The notice must be furnished upon receipt of a
complete or substantially complete application. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b)(1).
The notice must explain which evidence the claimant is
finally responsible for obtaining and which evidence VA will
attempt to obtain on the claimant's behalf. Quartuccio, 16
Vet. App. at 186. The United States Court of Appeals for
Veterans Claims (the CAVC) has held that the notice must be
furnished before an initial unfavorable decision by the
agency of original jurisdiction on the claim. Pelegrini v.
Principi, 18 Vet. App. 112, 119-20 (2004) (Pelegrini II).
The VCAA provides that if the claimant has not submitted the
evidence identified by VA, or the information that would
enable VA to assist the claimant in obtaining the evidence,
within one year after the date of the notice, no benefit may
be paid or furnished by reason of the claimant's application.
38 U.S.C.A. § 5103. The implementing regulation states that
a claimant has one year from the date the notice is sent in
which to submit information or evidence that VA has
identified. 38 U.S.C.A. § 5103(b). The implementing
regulation also states, however, that if a claimant has not
responded to a notice requesting information or evidence
within 30 days after the date of the notice, VA may decide
the claim before the one-year period has expired but must
readjudicate the claim if the claimant later provides the
information or evidence within that period. 38 C.F.R.
§ 3.159(b)(1). A recent amendment of section 5103(b),
effective from November 9, 2000, is to the same effect. See
38 U.S.C.A. § 5103(b), as amended by Veterans Benefits Act of
2003, P.L. 108-183, Section 701(b), 117 Stat. 2651, ___ (Dec.
16, 2003).
Review of the claims file shows that the RO early on during
the course of the adjudication process did not issue a
discrete document, for example, a letter, designated as the
notice required by section 5103 of the VCAA. However, it is
evident that throughout the adjudicative process, the RO kept
the veteran and his representative informed about the
evidence that would substantiate the claim, apprised him of
his and VA's respective responsibilities under the VCAA to
make efforts to secure the needed evidence, and described his
due process rights and VA's duties under the VCAA concerning
the development of evidence.
In an August 2001 letter sent to the veteran and his
representative, the RO described the types of evidence that
could substantiate the claim, suggested what VA's and the
veteran's respective responsibilities were for obtaining that
evidence, and stated that it would decide the claim if the
veteran had not submitted evidence or information that the RO
could use to obtain evidence within 60 days after the date of
the letter. In describing the evidence needed to support the
claim, the RO did not explicitly advise that the evidence had
to show that the severity of the left knee disability had
increased. However, it was clear that the veteran understood
the nature of his claim. Indeed, he averred in his May 2001
statement of claim that his left knee disability had
worsened, attaching private medical records to the statement
of claim to support that contention. Therefore, there was no
need for the RO to advise the veteran in the August 2001
letter of what evidence supporting a claim for an increased
rating had to show. Furthermore, any defects in the August
2001 notice were cured by means of the statement of the case
that the RO issued in December 2002. There, the RO described
in detail the evidence that would substantiate the claim,
discussing the provisions of the rating schedule that
determined what the evidence must show. The statement of the
case, by citing the pertinent sections of the VCAA and
setting out the content of the regulation implementing those
sections, informed the veteran of his and VA's respective
responsibilities to make efforts to secure the needed
evidence and described his due process rights and VA's duties
under the VCAA concerning the development of evidence.
Notification of the veteran about these matters was not
accomplished before the initial adjudication of the issue on
appeal. Cf. Pelegrini, 18 Vet. App. at 119-20. However,
this defect in the timing of notice did not prejudice the
ability of the veteran to prosecute his appeal of the rating
reduction. The VCAA aims to ensure that a decision affecting
the receipt of VA benefits is rendered on the basis of a
complete evidentiary record and after the claimant and the
claimant's representative, if any, are notified about the
evidence needed to support the claim. The RO provided notice
sufficient to enable the veteran to participate effectively
in this process. With such notification, the evidentiary
record was developed. It appears that all evidence needed to
decide the issue on appeal has been obtained.
Development of evidence
The VCAA requires that after notification is accomplished
under section 5103 concerning the evidence that is needed to
substantiate the claim, VA take certain actions to assist the
claimant in obtaining that evidence. With respect to the
issue on appeal, VA has fulfilled its duty to assist the
veteran with the development of evidence.
The VCAA requires VA to make reasonable efforts to obtain
records relevant to the claim and to notify the claimant if
the records could not be secured. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c)(1)-(3). VA's duty to obtain records
applies when the claimant, after being requested to do so by
VA, "adequately identifies [such records] to the Secretary
and authorizes the Secretary to obtain" them. 38 U.S.C.A.
§ 5103A(b). When the records are in the custody of a federal
department or agency, the VCAA requires VA to continue to try
to obtain them until it has been successful unless it is
reasonably certain that they do not exist or that further
efforts to obtain them would be futile. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c)(2). When such records are not in the
custody of a federal department or agency, reasonable efforts
to obtain them generally will consist of an initial request
and, if the records are not received, at least one follow-up
request, but a follow-up request is not required if a
response to the initial request indicates that the records
being sought do not exist or that a follow-up request would
be futile. However, if VA receives information showing that
subsequent request to this or another custodian could result
in obtaining the records sought, then reasonable efforts will
include an initial request and, if the records are not
received, at least one follow-up request to the new source or
an additional request to the original source. 38 C.F.R.
§ 3.159(c)(1).
The VCAA requires VA to give certain notice to the claimant
if it is unable to obtain records needed to substantiate the
claim. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The
implementing regulation prescribes the content of this
notice. The notice must (i) identify the records VA was
unable to obtain; (ii) explain the efforts VA made to obtain
the records; (iii) describe any further action VA will take
regarding the claim, including, but not limited to, notice
that VA will decide the claim based on the evidence of record
unless the claimant submits the records VA was unable to
obtain. 38 C.F.R. § 3.159(e).
Further, the VCAA requires VA to secure a medical examination
or opinion if such is necessary to decide a claim for
benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R.
§ 3.159(c)(4). For a VA examination to be considered
necessary to the decision of a claim, it must be the case
that there is competent evidence on file that a veteran has a
current disability or persistent and recurring symptoms of
disability that in turn may be associated with his active
service but the medical evidence on file is insufficient to
resolve the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R.
§ 3.159(c)(4)(i).
Review of the claims file shows that the RO obtained all VA
and private medical records that the veteran indicated were
relevant to his claim other than private medical records that
the veteran submitted himself. The Board concludes that the
medical records needed to decide the claim are now on file.
In addition to those medical records, VA examination reports
are on file. These examination reports, dated in October
2001 and December 2002, respectively, contain findings needed
to resolve the issue on appeal.
The duties VA owes a claimant of VA benefits under the VCAA
have been satisfied in the case of the issue on appeal. On
the basis of the record on file, therefore, the Board has
decided the appeal
ii. Rating of left knee disability
General principles of disability rating
In general, disability evaluations are assigned by applying a
schedule of ratings, which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155. VA regulations require that,
in evaluations of a given disability, that disability be
viewed in relation to its whole recorded history. See 38
C.F.R. §§ 4.1, 4.2 (2004). All VA regulations which the face
of the record indicates are potentially relevant to the claim
for increased evaluation will be considered by the Board,
whether explicitly raised in the record or not, unless their
consideration would be arbitrary, capricious, or contrary to
law. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).
In every instance in which the rating schedule does not
provide a zero percent evaluation for a diagnostic code, a
zero percent evaluation shall be assigned when the
requirements for a compensable evaluation are not met.
38 C.F.R. § 4.31 (2004).
The evaluation of the same disability under various diagnoses
is to be avoided. Both the use of manifestations not
resulting from service-connected disease or injury in
establishing the service-connected evaluation and the
evaluation of the same manifestation under different
diagnoses are to be avoided. 38 C.F.R.
§ 4.14 (2004).
In the rating of disabilities, it is not expected that all
cases will show all the findings specified for a particular
evaluation under a diagnostic code. At the same time,
findings sufficiently characteristic to identify the disease
and the disability therefrom and coordination of rating with
impairment of function are always to be expected. See
38 C.F.R. § 4.21 (2004). When there is a question as to
which of two schedular ratings shall be applied, the higher
evaluation shall be assigned if the disability picture that
is presented approximates the criteria for that rating more
nearly than the criteria for the lower rating. 38 C.F.R.
§ 4.7 (2004).
VA adjudicators must consider whether a schedular disability
rating based on limitation of motion may be augmented under
certain regulations applying to disabilities of the
musculoskeletal system, 38 C.F.R. § 4.40, which concerns
functional loss due to pain, and 38 C.F.R. § 4.45, which
concerns functional loss due to weakness, fatigability,
incoordination, or pain on movement of a joint. Schafrath, 1
Vet. App. at 592; Deluca v. Brown, 8 Vet. App. 202, 204-08
(1995).
Disability evaluations take into account competent lay
evidence when relevant. Under the VCAA, "competent lay
evidence" means "any evidence not requiring that the
proponent have specialized education, training, or
experience." Lay evidence is competent "if it is provided
by a person who has knowledge of facts or circumstances and
conveys matters that can be observed and described by a lay
person." 38 C.F.R. § 3.159(a)(2); see Bruce v. West, 11
Vet. App. 405, 410-11 (1998) (one not a medical expert is
nevertheless competent to offer evidence of his symptoms in
support of a claim for an increased disability evaluation).
When after a careful review of all available and assembled
data, a reasonable doubt arises regarding the degree of
disability, such reasonable doubt must be resolved in favor
of the claimant. 38 C.F.R. § 4.3 (2004); see also 38 C.F.R.
§ 3.102 (2004) (all reasonable doubt arising from the record
concerning any point relevant to the claim must be resolved
in favor of the claim). Thus, a claim for a greater
disability evaluation will be granted unless it is refuted by
a preponderance of the evidence of record. 38 U.S.C.A.
§ 5107(b).
Factual Background
His service medical records show that the veteran fractured
his left patella during service in December 1981, had open
reduction internal fixation surgery on the patella to repair
the fracture in December 1981, reinjured the knee in January
1982, was treated with physical therapy and whirlpool baths
for the resulting open wound, had open reduction internal
fixation surgery on the patella in May 1982, again to repair
the fracture, developed draining of a sinus tract of the left
knee as a complication of that surgery, and had surgery to
excise the draining sinus tract in October 1982, and
developed a painful lump in the left knee that was treated in
July 1983, when it was assessed as an abscess or neuroma,
until it was pronounced fully healed. A report concerning x-
rays taken of the left knee in February 1982 showed that
there was a wire about the patella as a result of the
surgery. The report concerning his separation examination of
August 1983 notes that he had a chronic, left knee problem,
made reference to the three surgeries for fracture and sinus
tract drainage, and contained a recommendation that he
receive follow-up care from VA for the left knee.
In a December 1983 rating decision, the veteran was granted
service connection with a rating of 10 percent for a left
knee disability. The disability was rated by analogy under
Diagnostic Code 5257 and described in the rating as a
fracture of the patella of the left knee, postoperative, with
chronic draining sinus tract.
Increased ratings of the left knee were denied in rating
decisions of December 1985, August 1987, September 1993, and
April 1999.
A VA examination of the joints was performed in March 1999 in
conjunction with the claim denied in the April 1999 rating
decision. The report concerning the examination indicates
that it included x-rays of the left knee that showed "post-
traumatic and post-surgical changes involving the patella
which remain unchanged, with irregularity seen in the
interior border of the patella, and a metallic wire projected
over it," calcification of the intrapatellar region and a
density of the tibial eminence that were unchanged in
comparison with earlier manifestations, and "degenerative
changes of the left patellofemoral compartment." The
examination report states a diagnosis for the left knee of
"[s]tatus post surgical repair of fracture to the left
patella (times two)," "[d]egenerative joint disease of the
left knee," and "chronic pain relating to [these two
diagnoses]."
In May 2001, the veteran filed the claim of entitlement to an
increased rating of his left knee disability that was denied
in the January 2002 rating decision that is the subject of
this appeal. In his statement of claim, he related that his
knee "went out" as recently as March 2001 "with an extreme
amount of pain" that "left [him] unable to walk for a short
period of time" and averred that his left knee had worsened
"over the past ten years." He also related there that he
had tried a knee brace but found that it did not help, and he
gave examples there of ordinary use of the legs made
difficult by his left knee condition: stepping off a curb,
standing in one position too long, walking ("the knee
sometimes buckles and that action causes it to go out"), and
going up or down steps (which he said he had to execute with
great care). He added in the statement of claim that he had
missed "numerous days from work" because of pain in his
left knee.
Two private medical records were submitted with the May 2001
statement of claim. One, dated in September 2000, indicates
that the veteran had pain in the left knee since the 1981
surgery that had not responded to traditional treatment
(including medication) and shows that the veteran was given a
referral to an orthopedic surgeon. The other, dated in
October 2000, indicates that the veteran's left knee was
evaluated and assessed as "[s]tatus post left knee injury,
now with pain." The October 2000 report indicates that the
veteran said that currently, his left knee buckled at times
and that he had pain with use of the knee. The report
indicates that the examining physician reviewed x-ray reports
that showed that there was a metallic wire still within the
patella and that spurs and osteophytes had formed in the
knee. The report reflects that during clinical evaluation of
the left knee, the examining physician found that it bore a
well-healed transverse incision, that sensation and
circulation of the knee were intact, that the medial and
collateral ligaments of the knee were stable, that anterior
and posterior drawer signs for the knee were negative, and
that a Lachman test for the knee was also negative. The
report notes that the veteran said that he worked as a mail
handler for the United States Postal Service.
The veteran's representative submitted work attendance
records and additional private medical records in October
2001. The work attendance records, which concerned the years
2000 and 2001, showed that the veteran had been absent from
work but did not state the reasons for the absences. The
private medical records, which showed treatment for several
orthopedic conditions, included notes concerning the left
knee that were dated in July 1999 and April 2001,
respectively. The July 1999 note shows that the veteran
complained of pain in his left knee and that the left knee
condition was assessed as "[s]tatus post open reduction and
internal fixation of the displaced fracture of the left
patella and degenerative arthritis. The April 2001 note
shows that the veteran complained that he had been suffering
from pain in his left knee for the past several days and
needed a medical excuse to stay home from work and that the
physician who saw him gave him the excuse after assessing his
condition as "[l]eft knee pain most likely secondary [to]
osteoarthritis."
In October 2001, the veteran submitted a VA Form 21-4138,
Statement in Support of Claim, in which he declared that his
left knee had deteriorated seriously "over the years" to
the point that he could no longer climb stairs without severe
pain.
In conjunction with the claim for an increased rating of the
left knee disability, a VA examination of the joints was
performed in October 2001. The examination report indicates
that the veteran said that he had worked at a post office for
the past 15 years and did so currently under a one-hour
standing restriction; that he was able to sit and stand
throughout an eight-hour workday; that his left knee was
painful and rated the pain as 7 or 8 on a scale of 10; that
he could walk only for one-quarter of a mile; that he could
stand no more than one, and sit no more than two, hours at a
time; that standing and walking and "the weather" increased
the pain in his left knee; and that he wore a brace on the
knee at times. The examination report indicates that
physical examination showed that there was no evidence of
erythema, instability, swelling, or crepitus of the left
knee, that Lachman's and McMurray's signs for the left knee
were negative, that the range of motion of the knee was from
extension at 0 degrees to flexion at 130 degrees, and that
for the left (and as well, the right) lower extremity, deep
tendon reflexes were 2+, sensation was intact, and strength
was 5/5. The examination report observes that the veteran
had pes planus of each foot, ambulated normally except with a
varus gait, and was able to put his full weight on his left
leg. The examination report refers to x-rays of both knees
that were taken in conjunction with the examination
demonstrating "[m]ild degenerative disease which is
tricompartmental in the left knee and which is extremely
minimal in patellofemoral joint on right and tibial spines
bilaterally," "[s]light diffuse soft tissue swelling
anterior to patellae bilaterally, as well as thickening and
calcifications within patellar tendons bilaterally, findings
that may be the result of inflammation or previous trauma,"
"post-surgical change in left patella with metallic wire in
place," and "[o]therwise normal knees." The radiology
findings set out in the examination report noted that the
condition of the left knee had not changed "significantly"
since the date in March 1999 when a VA joints examination
last was performed. The examination report states a
diagnosis of status post patella fracture with degenerative
joint disease of the left knee unchanged from the previous
[March 1999] examination and bilateral soft tissue swelling
consistent with acute trauma not related to the service-
connected condition.
In response to the January 2002 rating decision denying an
increased rating, the veteran filed a notice of disagreement
in March 2002 in which he pointed out that his left knee gave
him "a great deal of pain" and caused him problems.
VA outpatient treatment records dated in 2002 are on file. A
July 2002 orthopedic note indicates that the veteran
complained of pain in his left knee, including pain with use
of the knee, but denied having any catching, locking, or
instability of the knee. A September 2002 orthopedic note
shows that the veteran complained that his left knee
condition was painful, had not improved, that he walked with
a cane, that his symptoms worsened with prolonged sitting,
and that he had pain in what the physician identified as his
anterior knee. The note indicates that clinical evaluation
showed that the veteran had full range of motion of the left
(and as well, the right) knee, no effusion, significant
anterior scarring of the left knee, and diffuse anterior pain
with a positive patellar grind test and a femoral condition
"TTP." The note indicates that x-rays of the left knee
disclosed moderate degenerative joint disease (of the patella
femoral and medial areas of the knee) and the presence of a
retained wire in the patella. The note states an assessment
for the left knee of degenerative joint disease and patella
femoral syndrome, commenting with this assessment that the
veteran is not a candidate for total knee arthroscopy. A
September 2002 physical therapy note of the same date
indicates that the veteran resisted moving his left knee
because of pain and comments that he had "severe scar
restriction" of that knee.
In conjunction with the appeal of the January 2002 rating
decision, a VA examination of the joints was performed in
December 2002. The examination report indicates that the
veteran said that his pain in the left (and as well, the
right) knee had increased progressively over the last several
years and its degree of severity was 8 to 10 on a scale of
10; that his knees were not weak but were stiff when he
walked; that his knees would swell occasionally; that he
experienced no dislocation or subluxation of the knees; that
he currently used ibuprofen and acetaminophen for pain; that
he had missed approximately one-third of his work days
because of knee or back pain; that he could drive and, other
than being limited at work, could perform the activities of
daily living; and that he used a cane in his right hand and a
brace on his left knee. The examination report observes that
the examination was "extremely limited secondary to
patient's complaints of pain and refusal to bend his knees."
Concerning range of motion in the left knee, the examiner
noted in the examination report that the veteran kept the
knee straight - - that both knees were wrapped in "Ace
bandages" - - and, although a December 2002 treatment record
showed he exhibited flexion of the left knee to 90 degrees,
was usually, including during the examination, not able to
exhibit more than 30 degrees of flexion because of the pain
accompanying that motion. The examiner noted in the
examination report that the left knee was not ankylosed. The
examiner commented in the examination report, that he
believed the veteran could achieve knee flexion that was
greater than 30 degrees but acknowledged that his motion may
have been restricted to that extent by pain. The examination
report indicates that there was no evidence of effusion or
warmth of the left (or the right) knee; that the veteran had
a positive patellar grind test for the left knee; that he
said that he had pain in what the examiner identified as the
anterior and posterior areas of the left knee; that there was
no evidence of quadriceps wasting on the left (or the right)
side; and that the veteran walked during the examination
without bending his knees although his shoes had no unusual
pattern of wear. The examination report indicates that the
stability of the knee ligaments was tested, and it does not
note that the ligaments were unstable. The examination
report observes that there was "some evidence of some scar
tissue" of the left knee but concludes that this scar tissue
has not restricted left knee range of motion. Referring to
the VA September 2002 report concerning x-rays of the knee,
the examiner suggested in the examination report that there
was no clinical sign of inflammatory arthritis or of
chondrocalcinosis. The examination report states a diagnosis
for the left knee of degenerative joint disease with range of
motion restricted by pain:
Mild to moderate DJD [degenerative joint
disease] of the left knee with severely
restricted motion secondary to pain,
however, based on my physical examination
and the x-ray report [of September 2002],
I do not feel that it is as much of a
limitation as would be suggested on
examination. Again, I feel that he has
at most moderate DJD with some pain and I
do not think that the knee is unstable or
grossly restricted in its range of
motion. There is not enough scar tissue
to explain decreased range of motion for
that injury.
In the VA Form 9, Appeal to Board of Veterans' Appeals,
constituting his substantive appeal of the RO's denial of an
increased rating, the veteran again described the left knee
disability as he experienced it. He averred that the left
knee was unstable and "grossly restricted" in its range of
motion. He noted that it was extremely painful to flex the
left knee. He said that his left knee disability left him
unable to walk properly or carry on normal physical
activities.
Rating
The veteran's left knee disability has been rated as 10
percent disabling since it was given service connection in
the December 1983 decision. It has been rated consistently
under Diagnostic Code by analogy with instability or
subluxation of the knee. See 38 C.F.R. § 4.71a, Diagnostic
Code 5257; 38 C.F.R. § 4.20 (2004).
Ratings authorized under Diagnostic Code 5257 for recurrent
subluxation or lateral instability are 10 percent for a
disability that is slight, 20 percent for one that is
moderate, and 30 percent for one that is severe. See
38 C.F.R. § 4.71a, Diagnostic Code 5257.
The medical evidence on file concerning the current condition
of the left knee indicates that the veteran does not have
instability or subluxation of the left knee. Findings to
that effect are made in the reports concerning the October
2001 VA examination of the joints (which cites negative
Lachman's and McMurray's signs for the left knee) and the
July 2002 VA examination of the joints. The report
concerning the private medical evaluation of the left knee
performed in October 2000 is consistent with the findings in
the VA examination reports: it observes that the medial and
collateral ligaments of the knee were stable, that a Lachman
test for the knee was also negative, and that anterior and
posterior drawer signs for the knee were negative.
Counterposed to this medical evidence are the statements by
the veteran, given directly to VA or referred to in the
medical records and examination reports, that his left knee
is unstable, "gives out," and "buckles." This is
competent evidence shedding light on the experience that the
veteran has of his left knee disability. 38 C.F.R.
§ 3.159(a)(2); see Bruce, 11 Vet. App. at 410-11. The Board
has considered these accounts. However, because they are not
supported by the medical evidence but instead are
contradicted by it, the Board cannot conclude that the
veteran's left knee disability should be given a compensable
rating, much less one of 10 percent, under Diagnostic Code
5257. Rather, the weight of the evidence shows that the
veteran's left knee disability is not characterized today by
symptoms comparable to subluxation or instability. Thus, the
disability should not be evaluated under Diagnostic Code
5257. See Butts v. Brown, 5 Vet. App. 532, 537-40 (1993).
The evidence on file, both medical and the veteran's own
statements, concerning the current condition of the left knee
shows that the predominant features of the left knee
disability are arthritis, pain, and limitation of motion.
Thus, the Board finds that the left knee disability should be
rated as arthritis and not as a disability comparable to
instability or subluxation of the knee. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5003. In reaching this conclusion,
the Board notes that the General Counsel of VA has held that
contrary to the general rule that separate evaluations may
not be given for the same disability, separate evaluations
may be given for lateral instability of a knee and arthritis
of that knee if both are clinically present. See VAOPGCPREC
23-97 (1997); VAOPGCPREC 9-98 (1998); cf. 38 C.F.R. § 4.14.
In so holding, the General Counsel observed that Diagnostic
Code 5257 does not concern limitation of motion but arthritis
of a joint is rated on the basis of limitation of motion.
Id. In this case, however, separate evaluations for
instability and arthritis of the left knee are not warranted
by the facts because the medical evidence does not confirm
that the left knee is unstable.
The medical evidence on file concerning the current condition
of the left knee demonstrates that the veteran currently has
degenerative joint disease of the left knee that has been
confirmed by x-rays. Arthritis of a joint that is
established by x-ray findings is rated under Diagnostic Code
5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic
Code 5003 directs that arthritis of a joint be rated on the
basis of limitation of motion of the joint under the
appropriate diagnostic codes. Id.
Limitation of motion of the knee is rated under Diagnostic
Codes 5260 and 5261, respectively, which concern limitation
of motion of the leg. See 38 C.F.R. § 4.71a, Diagnostic
Codes 5260 concerns limitation of flexion, and 5261
limitation of extension. The General Counsel of VA has held
that separate ratings may be assigned for limitation of
flexion and limitation of extension of the same knee.
VAOPGCPREC 9-04 (2004).
Ratings authorized under Diagnostic Code 5260 for limitation
of flexion of the leg are 0 percent when the flexion is
limited to 60 degrees, 10 percent when limited to 45 degrees,
20 when limited to 30 degrees, and 30 percent when limited to
15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.
Ratings authorized under Diagnostic Code 5261 for limitation
of extension of the leg are 0 percent when extension is
limited to 5 degrees, 10 percent when limited to 10 degrees,
20 percent when limited to 15 degrees, 30 percent when
limited to 20 degrees, 40 percent when limited to 30 degrees,
and 50 percent when limited to 45 degrees.
The medical evidence on file concerning the current condition
of the left knee shows that the veteran does not have
restricted extension of the left knee. The report concerning
the October 2001 VA examination of the joints indicates that
he achieved extension of the left knee to 0 degrees. The
report concerning the January 2002 VA examination of the
joints indicates that his left knee was straight (that is, at
extension to 0 degrees) and that is was not straight on
account of ankylosis. See Lewis v. Derwinski, 3 Vet. App.
259 (1992) (Ankylosis is defined as immobility and
consolidation of a joint due to disease, injury, or surgical
procedure.) The September 2002 VA orthopedic note relates
that the veteran exhibited full range of motion of the left
knee. No medical evidence on file confirms that extension of
the left knee is restricted, nor does the veteran so allege.
The medical evidence on file varies concerning whether the
veteran has restricted flexion of his left knee that is
recognized by the rating schedule. The report concerning the
October 2001 VA examination of the joints indicates that he
achieved flexion of the left knee to 130 degrees. The
September 2002 VA orthopedic note related that he exhibited
full range of motion of the left knee. These findings do not
support either a compensable or a noncompensable rating under
Diagnostic Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Code
5260. However, the report concerning the January 2002 VA
examination of the joints indicates that flexion of the left
knee is limited to as much as 30 degrees and furthermore, is
accompanied by pain. Although the examiner suggests in the
examination report that the veteran's left knee flexion may
be greater than 30 degrees, the examination findings do not
corroborate that supposition. In addition, both the medical
evidence and the statements of the veteran indicate that he
usually has pain in his left knee. Pain is an important
factor in the disability resulting from arthritis. The
intent of the rating schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. 38 C.F.R. § 4.59 (2004).
The Board finds that the evidence concerning the limitation
of flexion of the veteran's left knee is in equipoise. That
being the case, reasonable doubt must be resolved in favor of
the claim. Flexion limited to 30 degrees warrants a rating
of 20 percent under Diagnostic Code 5261. Id. Accordingly,
the Board finds that the veteran has actual limitation of
flexion of the left knee that warrants a rating of 20 percent
under Diagnostic Code 5260. 38 C.F.R. § 4.7; see also
38 C.F.R. § 3.102.
The Board likewise concludes that the rating of the veteran's
current disability of the left knee should not exceed 20
percent.
The Board has considered the evidence on file that the
veteran has suffered loss of function of his left knee.
38 C.F.R. §§ 4.40, 4.45; Deluca, 8 Vet. App. at 204-08. This
evidence shows mainly that function of the left knee is
limited because of pain. Statements of the veteran contained
in the file indicate that he sometimes wears a brace on his
left knee and cannot sit, stand, or walk for a significant
time without increased left knee pain. However, the report
concerning the December 2002 VA examination indicates that by
his own account, the veteran, although not able to manage all
of the lifting and weight-bearing that working as a mail
handler requires, is able to perform the normal activities of
daily living, including driving a car. On the basis of this
evidence, the Board concludes that there is no additional
disability resulting from loss of function of the left knee
that is not addressed by the rating of 20 percent granted
here.
A schedular rating exceeding that resulting from these
evaluations, however, may not be assigned. The only
diagnostic code pertaining to a knee disability under which a
rating of 50 percent or greater may be established is
Diagnostic Code 5256, which concerns ankylosis of the knee.
See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2004). Under
this provision, evaluations ranging from 30 to 60 percent are
afforded for ankylosis of the knee. However, there is no
evidence that the veteran's left knee is ankylosed. See
Lewis v. Derwinski, 3 Vet. App. 259 (1992) (Ankylosis is
defined as immobility and consolidation of a joint due to
disease, injury, or surgical procedure.) Indeed, the report
concerning the VA examination performed in February 1999
notes specifically that the left knee was not ankylosed.
The Board has considered all other provisions of the rating
schedule potentially applicable to the veteran's knee
disabilities. These include Diagnostic Code 5262, which
concerns nonunion or malunion of the tibia and fibula. See
38 C.F.R. § 4.71a, Diagnostic Code 5262 (2004). The use of
this Code would be inappropriate, however, because there is
no medical evidence of nonunion or malunion of the tibia and
fibula. Other diagnostic codes pertaining to the knee - -
Diagnostic Codes 5258 (concerning dislocation of the
semilunar cartilage), 5259 (concerning removal of the
semilunar cartilage), and 5263 (concerning genu recurvatum) -
- are similarly inapplicable because the knee disabilities
are not manifested by such symptoms or findings. See
38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259, 5263 (2004).
The Board has considered whether a separate evaluation should
be granted for scarring of the left knee. In most instances,
separate ratings may not be established for the same
disability because the evaluation of one disability under
different diagnoses is prohibited. 38 C.F.R. § 4.14.
However, separate evaluations are warranted for different
disability manifestations, even when all are associated with
the same service-connected injury or disease, provided that
the symptomatology of one problem does not overlap with that
of another. See Esteban v. Brown, 6 Vet. App. 259 (1994);
see also 38 C.F.R. § 4.25(b) (2004) ("[T]he disabilities
arising from a single disease entity . . . are to be rated
separately as are all other disabling conditions. . . .").
The Board finds, however, that neither the medical evidence
on file concerning the current condition of the veteran's
left knee nor the veteran's own statements contained in the
file attribute to the scarring any symptomatology indicative
of a disability of the skin or otherwise separate and
distinct from that associated with the arthritis. The report
concerning the January 2002 VA examination of the joints
indicates that no such symptomatology was identified by the
examiner. In addition, although any restriction of left knee
motion produced by the scarring would be addressed by the
rating assigned here for limitation of flexion, the
examination report noted specifically that scarring had not
produced any limitation of motion of the knee. Therefore, a
separate evaluation for left knee scarring is not warranted
in this case. In so finding, the Board has considered both
the amended rating criteria applicable to scars and other
disabilities of the skin, see 67 Fed. Reg. 49,950 (July 31,
2002), and the rating criteria as they existed prior to the
amendments. See Green v. Brown, 10 Vet. App. 111, 116-19
(1997); 38 U.S.C.A. § 5110(g) (West 2002).
Accordingly, an evaluation of 20 percent for limitation of
flexion of the left knee resulting from arthritis will be
granted in this case. 38 C.F.R. § 4.71a, Diagnostic Code
5260.
iii. Extraschedular rating, left knee disability
The Board has considered whether referral of this claim for
consideration of an extraschedular evaluation is warranted
under 38 C.F.R. § 3.321(b)(1) (2004). See Floyd v. Brown, 9
Vet. App. 88, 95 (1996). Referral for extraschedular
evaluation, however, is based on a finding that the
disability in concern presents "such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards." 38 C.F.R. § 3.321(b)(1).
The veteran has asserted that he has missed approximately
one-third of his work days from back or knee pain and
numerous work days because of left knee pain. He has
produced employment records denoting absences from work,
although the reasons for the absences are not documented.
However, this evidence does not suggest that his left knee
disability may have interfered with his employment beyond the
degree already contemplated by the rating schedule. The
disability rating of 20 percent granted here itself
recognizes that the veteran's industrial capabilities are
impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993). There is no evidence of any of the extraordinary
factors contemplated by 38 C.F.R. § 3.321(b)(1).
Accordingly, the Board finds that the criteria for referral
of the veteran's left knee disability for consideration of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)
have not been met. Shipwash v. Brown, 8 Vet App 218, 227
(1995).
ORDER
A rating of 20 percent for arthritis of the left knee is
granted, subject to controlling regulations applicable to the
payment of monetary benefits.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs